A question about Merrick Garland (above) would be embarrassing — but worth asking.

By Alan M. DershowitzFebruary 02, 2017

President Trump’s nomination of Judge Neil Gorsuch gives Senate Democrats an opportunity to put a difficult question to the nominee: Does he believe that Senate Republicans acted constitutionally and properly in preventing President Obama’s Supreme Court nominee, Merrick Garland, from receiving a hearing or an up and down vote? Gorsuch will try desperately to avoid answering that embarrassing question.

It is embarrassing because, as a constitutional originalist, he must certainly agree that the Senate has a constitutional obligation either to consent or deny consent to a president’s nominee. There is nothing in the Constitution that would allow senators to refuse to perform their constitutional obligation, in the hope that the next president will be of their party. Gorsuch would have to express at least some constitutional concerns about the actions of Republican senators following the death of Antonin Scalia a year ago.

But if Gorsuch were to answer that probing question honestly, he would be challenging the legitimacy of his own nomination. He surely will not want to do that, despite the reality that the Scalia vacancy should have been filled by a qualified candidate nominated by President Barack Obama, who had nearly a year left in his term.

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Asking and re-asking that embarrassing question during Gorsuch’s confirmation hearings would make good theater. It might also make good politics for the Democrats. But it is unlikely to change the result, since Gorsuch is eminently qualified by his academic and judicial background to serve on the high court.

There is an argument, made early in our constitutional history, that “a party nomination may justly be met with party opposition.” The Federalist Papers support the argument that the Senate need not sit back and allow a president to reap partisan political advantage from an appointment to the Supreme Court. This argument might justify the Democratic tactic of fighting fire with fire — obstruction with obstruction. It is unseemly, but it is not without historic precedence or justification.

That approach should perhaps be reserved for a nominee whose confirmation would tip the balance of the Supreme Court dramatically in one direction. This nomination — one conservative originalist judge replacing another — is unlikely to tip that balance. The next vacancy, if it were of a liberal seat, might well change the jurisprudence of the Supreme Court in a way that denies fundamental rights to the most vulnerable Americans. If the nominee to fill that vacancy would dramatically shift the current balance, an ideological confirmation battle might well be justified — and would likely occur.

In that circumstance, there might be enough Democrats — aided perhaps by a handful of centrist Republicans — to block the nomination. For now, however, there do not appear to be even enough Democratic senators who would be willing to filibuster this nomination, thus forcing the Republications to vote to rescind the current rule allowing Supreme Court nominations to be filibustered unless there were 60 votes to end debate.

It is tragic that the constitutional process for nominating and confirming Supreme Court justices has become so politicized. Back in 1932, another Republican president was faced with the responsibility of filling the Supreme Court chair that had been occupied by Oliver Wendell Holmes. When President Herbert Hoover showed his list of prospective candidates to Senator William E. Borah of Idaho — who was known to favor a Western Republican — Senator Borah pointed to the bottom name and said, “Your list is all right, but you handed it to me upside down.”

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The bottom name was that of Benjamin Cardozo, a Democrat from New York and a Jew — but also the nation’s most respected state court judge and a paragon of judicial virtue. President Hoover responded that there were already two New Yorkers and one Jew on the court, but Senator Borah declared: “Cardozo belongs as much to Idaho as to New York [and] anyone who raises the question of race is unfit to advise you concerning so important a matter.” The rest, of course, is history. The Cardozo nomination was unanimously — indeed, instantaneously — approved, and Hoover was credited with having “performed the finest act of his career as president.”

I don’t often wish for a return to “the good old days,” but when it comes to selecting Supreme Court justices, there is much to be said for the approach taken by President Hoover and Senator Borah.

Alan M. Dershowitz is professor emeritus of law at Harvard University and author of “Taking the Stand: My Life in the Law’’ and “Electile Dysfunction: A Guide for Unaroused Voters.’’